Archive for July, 2012

Considerable attention has been given to groups that gained a direct advantage as a result of the Citizens United case. Significantly less has been devoted to understanding how the case affected other political institutions and what the implications may be. Political parties are the wheels of democracy; they mobilize voters, structure vote choices, recruit candidates, and function as a means of turning political preferences into policy. In this article in Campaigns and Elections, Neil Reiff discusses how parties have been negatively impacted by recent campaign finance regulation (specifically since the McCain-Feingold Act in 2002) and why the outcome of the Citizens United case further exacerbates the problem.

A study analyzes how specific rules, in this case New York City’s “matching funds” program, affects the demographic and socioeconomic diversity of what groups choose to participate and contribute to campaigns.

The Supreme Court’s decision in the Citizens United case was largely predicated on theoretical concerns about free speech and First Amendment rights. One of the key criticisms of the ruling was its failure to account for how the rules affect other important components of the electoral process, such as voter participation. New York City’s public financing matching program, in which contributions up to $150 are matched 6-1, is one example of how regulatory policy can have a positive effect on desirable outcomes; in this case, by increasing participation and expanding the diversity of the voter base.

A recent study conducted by the Campaign Finance Center and New York University compared the state’s campaign finance system to the city’s system in order to see which appeared better suited to encourage (rather than suppress) participation among all demographic and socioeconomic groups. It determined that by encouraging small dollar donations, the city’s matching program provided candidates a greater incentive to reach out to a greater variety of voters, which had a positive impact on participation rates of diverse groups.

The report’s co-authors conclude: “the city’s public financing system appears to have achieved one of its key goals — strengthening the connections between public officials and their constituents.” The apparent success of the program has led to discussion of extending the policy to statewide elections in New York.

To be sure, reconciling the abstract nature of First Amendment concerns, with the realistic effect of how rules impact the behavior of both candidates and voters, is no easy task. However, it is perhaps our role as practitioners that lead us to conclude that the methods of one over the other seem more appealing and beneficial to promoting a free and fair democratic electoral process.

One New Yorker piece by Jeffrey Toobin that we found particularly interesting discusses the role that Chief Justice John Roberts played in “orchestrating” the Citizens United decision. In “Money Unlimited,” Toobin provides a comprehensive background of the events leading up to the now infamous decision that struck down the ban on corporate spending in elections. He examines the personality and individual motivations of the Justices, and explains how these crucial yet often neglected factors fundamentally shaped the landmark Citizens United ruling. Specifically, Toobin focuses on the impact that Chief Justice Roberts had on the ultimate outcome, and went so far as to state, “as American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.”

How did the Chief Justice accomplish such a feat? According to Toobin, John Roberts orchestrated the decision by manipulating the scope of the case, in other words, what legal question was being presented to the Court. If Justice Roberts had maintained the narrow scope, then the decision would have been specific to the one case and would have had minimal impact beyond it. Instead, he shifted away from the specific facts of this one case and began focusing on more general and theoretical ones including the relationship between money, free speech, and First Amendment rights. He also notes that Roberts also made use of tactical strategic choices. In assigning Justice Kennedy, both a noted First Amendment champion as well as the swing vote on the Court, the primary author of the Majority’s Opinion meant there would be no ambiguity in the final ruling.

As Toobin notes, “these rhetorical fights were a long way from the gritty business of raising and spending campaign money.” Indeed, it is difficult to overlook the practical effect of the ruling now two and a half years later. Speech may not be stifled, yet it is also certain that not all voices are being heard.